USA v. Rapanos, s. 98-2424

• Citation: 235 F.3d 256
• Decision Date: 24 October 2000
• Docket Number: Nos. 98-2424,s. 98-2424
• Parties: (6th Cir. 2000) United States of America, Plaintiff-Appellee/Cross-Appellant (99-1074), v. John A. Rapanos, Defendant-Appellant (98-2424; 99-1578)/Cross-Appellee. ; 99-1074, 99-1578 Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 256

235 F.3d 256 (6th Cir. 2000)

United States of America, Plaintiff-Appellee/Cross-Appellant (99-1074), v. John A. Rapanos, Defendant-Appellant (98-2424; 99-1578)/Cross-Appellee.

Nos. 98-2424; 99-1074, 99-1578

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 24, 2000

Decided and Filed: December 15, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 93-20023--Lawrence P. Zatkoff, Chief District Judge. [Copyrighted Material Omitted] Jennifer J. Peregord, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

Thomas V. Wilhelm, Bloomfield Hills, Michigan, for Appellant.

Before: MARTIN, Chief Judge; NORRIS, Circuit Judge; FORESTER, District Judge^*.

OPINION

BOYCE F. MARTIN, JR., Chief Judge.

John A. Rapanos appeals the district court's denial of his 1999 motion for new trial as well as his 1995 conviction for filling wetlands in violation of 33 U.S.C. § 1311(a). The United States cross-appeals Rapanos's sentence of three years' probation and a $185,100 fine and assessment. For the following reasons, we AFFIRM the denial of Rapanos's 1999 motion for new trial, AFFIRM his conviction, and REMAND with specific instructions for resentencing.

I.

The facts of this case were set forth in detail by this Court in United States v. Rapanos, 115 F.3d 367 (6th Cir. 1997), and need not be restated here. On appeal, Rapanos challenges his conviction, claiming errors in the jury instructions, prosecutorial misconduct, and insufficiency of the evidence. Rapanos also appeals the district court's denial of his 1999 motion for new trial. We have reviewed each of these claims and find that the district court did not err.

II.

The government appeals Rapanos's sentence on three grounds: 1) that the district court improperly granted Rapanos two one-level downward departures; 2) that the district court improperly granted Rapanos a two-level decrease for acceptance of responsibility; and 3) that the district court erred in not enhancing Rapanos's sentence for obstruction of justice. We conclude that the district court erred in granting Rapanos two one-level downward departures and a two-level decrease for acceptance of responsibility. The district court did not err in not enhancing Rapanos's sentence for obstruction of justice.

A.

The district court granted Rapanos a two-level downward departure under § 2Q1.3(b)(1)(A) of the U.S. Sentencing Guidelines Manual (1994), which addresses "an ongoing, continuous, or repetitive discharge, release, or emission of a pollutant into the environment." The district court also granted a two-level downward departure under § 2Q1.3(b)(4), which involves discharges "without a permit or in violation of a permit." The district court went beyond these two two-level downward departures and added a separate one-level downward departure under each provision, reasoning,

[T]hese guidelines are geared toward the discharge of harmful pollutants that result in actual contamination. In this case, the pollutant, in quotes, was sand that was moved from one end of a piece of property owned by the defendant to another end of the property owned by the defendant. It was not any toxic discharge, there were no pesticides, no nuclear material, no sewage, no paint, lead or other harmful things, just sand and soil that was already on this private property.

In addition, the Court finds that there was little harm or risk. It's not like you're filling a flowing river or stream with contaminants or poison.

We review a district court's decision to depart from the Sentencing Guidelines for an abuse of discretion. See Koon v. United States, 518 U.S. 81, 91 (1996). According to 18 U.S.C. § 3553(b) (2000), a sentencing court should impose a sentence prescribed by the guidelines "unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." A district court abuses its discretion when it takes into account a factor already considered by the Commission in the guidelines. See Koon, 518 U.S. at 111. If a factor is not mentioned in the guidelines, the district court should consider "whether it is sufficient to take the case out of the guideline's heartland." Id. at 96. The Commission has stated that "such cases will be highly infrequent." U.S. Sentencing Guidelines Manual ch. 1, pt. A, p. 6 (1994).

In the present case, the factors relied upon by the district court in its downward departures were adequately considered by the Commission in the guidelines. The guidelines provide for different types of pollutants by considering them under two different sections; Section 2Q1.2 deals with hazardous or toxic substances and pesticides and provides a higher base offense level than does § 2Q1.3, which addresses "other environmental pollutants" and under which Rapanos was sentenced. Both of the district court's two-level downward departures also considered the nature of the pollutant and the risk involved. The district court granted a two-level downward departure under Application Note 4, which provides for a two-level departure in either direction "[d]epending upon the harm resulting from the . . . discharge, the quantity and nature of the substance or pollutant, the duration of the offense and the risk associated with the violation." The district court's second two-level downward departure came from Application Note 7, which also grants a two-level departure in either direction "[d]epending upon the nature and quantity of the substance involved and the risk associated with the offense." The district court's stated concerns about the type of pollutant and the risk involved were thus considered in three different provisions of the guidelines, all of which the district court applied before granting the additional downward departures.

The district court provided no indication of any factors that would carry this case outside the "heartland" of environmental crimes not involving toxics, hazardous wastes, or pesticides. In fact, the district court's downward departure seemed based primarily on a fundamental disagreement with the sentencing guidelines pertaining to environmental criminals, as the district court made clear in announcing its final decision that Rapanos would receive no jail time:

I don't know if it's just a coincidence that the case that I just sentenced prior to this case has come into this court, that was the case of Mr. Gonzalez, who was a person selling dope on the streets of the United States. He is an illegal person here. He's a citizen of Cuba, not an American citizen. He has a prior criminal record....

So here we have a person who comes to the United States and commits crimes of selling dope and the government asks me to put him in prison for ten months. And then we have an American citizen who buys land, pays for it with his own money, and he moves some sand from one end to the other and government wants me to give him sixty-three months in prison. Now, if that isn't our system gone crazy, I don't know what is....